Before this Court is the United States' Motion to Dismiss the Joinder
Complaint of Contemporary Services Corporation ("CSC") pursuant to
Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction. Kevin Galligan ("Mr. Galligan"), a former United States
Military Academy ("USMA" or "West Point") cadet, sued several parties for
his injuries resulting from a safety railing collapse during a December
5, 1998, Army-Navy football game held at Veteran's Stadium in
Philadelphia, Pennsylvania. CSC, one of the Defendants in the action,
filed a Joinder Complaint against the United States.*fn1
Based on the Feres doctrine, the United States has filed the instant
Motion to Dismiss. For the reasons that follow, the Motion is granted.

The United States' Motion to Dismiss is based upon the Feres doctrine.
Relying on the Feres doctrine, the United States argues that "[t]his
Court lacks subject matter jurisdiction to adjudicate a third party
complaint against the United States for injuries sustained by military
personnel incident to service."*fn2 (Mot. Dismiss at 1)(citing Stencel
Aero Eng'g Corp. v. United States, 431 U.S. 666 (1977)). CSC argues that
this Court has subject matter jurisdiction because the Feres doctrine is
inapplicable to this case since "the injury that Kevin Galligan sustained
while at the Army/Navy game . . . was not incurred incident to his
service with the United States Army." (Mem. Law Opp'n Mot. Dismiss at 5.)
Thus, the issue involved in this case is whether the injury sustained by
Mr. Galligan arose out of activity incident to his military service. If
Mr. Galligan's injury arose out of activity incident to military
service, the Feres doctrine is applicable, and this Court lacks subject
matter jurisdiction over this case.

The Court of Appeals for the Third Circuit ("Third Circuit") has stated
that "the gravamen of the Feres doctrine is that the government is immune
from suit when injuries occur incident to service." O'Neill v. United
States, 140 F.3d 564, 565 (3d Cir.), cert. denied, 525 U.S. 962 (1998)).
Deciding whether an injury is incident to military service is not a
simple task because there is no bright line between whether an injury was
or was not incident to plaintiff's military service. McVan v. Bolco
Athletic Co., 600 F. Supp. 375, 379 (E.D.Pa. 1984). In fact, "[t]here is
a good deal of language in judicial opinions to the effect that the
inquiry is fact-specific and not easily susceptible to clear rules." Id.
(citing Woodside v. United States, 606 F.2d 134, 141 (6th Cir. 1979),
cert. denied, 445 U.S. 904 (1980)).

"The Supreme Court has not articulated a specific method for determining
whether an injury is `incident' to military service." Richards v. United
States, 176 F.3d 652, 655 (3d Cir. 1999), cert. denied, 528 U.S. 1136
(2000). However, the Supreme Court has given some guidance by instructing
"courts to examine each case `in light of the statute as it has been
construed in Feres and subsequent cases.'" Id. (quoting Shearer, 473
U.S. at 57). Courts have considered a number of factors when trying to
decipher the incident to military service issue "including: (1) the
service member's duty status; (2) the site of the accident; and (3) the
nature of the service member's activity at the time of the injury." Id.
(citing Dreier v. United States, 106 F.3d 844, 848 (9th Cir. 1997);
Schoemer v. United States, 59 F.3d 26, 28 (5th Cir.), cert. denied,
516 U.S. 989 (1995)). Each factor must be examined in light of the totality
of the circumstances, therefore, it is not necessarily dispositive if one
factor weighs in favor of applying the Feres doctrine. Id.

In this case, the site of the collapsed safety railing was at Veteran's
Stadium in Philadelphia, Pennsylvania. "Philadelphia is the traditional
site for the annual Army-Navy Football Game." (Mem. Law Opp'n Mot.
Dismiss, Ex. B.) For purposes of this Motion only, and relying on CSC's
allegations in its Joinder Complaint, the United States admits that "the
location of [Mr. Galligan's] alleged injury — Veteran's Stadium
— was the responsibility of the military." See supra Section
III.A.n.3. Thus, for purposes of this Motion, Mr. Galligan's injury was
sustained at a location that was the responsibility of the United States
military.

AND NOW, this 15th day of May, 2001, upon consideration of the United
States' Motion to Dismiss the Joinder Complaint of Contemporary Services
Corporation (Dkt. No. 9), and the Responses and Replies thereto, it is
hereby ORDERED that:

1. Togo D. West, Jr., Secretary of the United States Army; the United
States Army; the United States Military Academy; The United States
Military Academy Preparatory School; the Army Athletic Association;
Richard Danzig, Secretary of the United States Navy; The United States
Navy; and the United States Naval Academy Athletic Association are
DISMISSED as joinder Defendants and the United States is
substituted as the proper joinder Defendant;

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